Monday, November 02, 2015

Over at Right Wisconsin, I have a piece addressing the legacy media's blindspot on campaign regulation and disclosure. In general, journalists understand that compelled disclosure of the identity of speakers can chill speech. This is why they support laws that shield journalists from the obligation to disclose the identity of their sources. Compelled disclosure might cause those sources to dry up.

It's a defensible position - one I generally share - but it comes at a cost. The public's right to know - to assess the credibility of sources and the journalists who rely on them - is compromised. But that compromise may be worth it because it encourages speech - by sources and those who report on them - that would otherwise not occur.

The same is true of compelled reporting of the identity of those who pool their resources to speak. The public may find the identity of those behind a message useful in assessing the message and the politicians who support it. But forced reporting may deter people who do not wish to expose themselves to retaliation or disapprobation. There is a trade-of to be made and distinguishing between express and issue advocacy may be a good place to draw the line.

I could make the same point about the legacy media's typical attitude on "coordination." i.e., the idea that cooperation with a candidate to convey a message that the candidate supports makes the resources spent to convey that message a "contribution" to a candidate. This requires that the "contribution" be disclosed, but coordination is not -as is so often falsely reported - just about disclosure. A coordinated expenditure not only needs to be disclosed, it cannot be made at all. The poor soul who makes it - who spends money to speak - may go to jail for exceeding the limits on contributions.

Of course, the media can coordinate as well as anyone else. It can find out what a candidate wants to say and, if it supports that message, use its considerable resources to convey it. In doing so, it confers a substantial benefit upon the candidate. Yet I am sure that the media would scream long and loud - and rightly so - about a law that would make its reportage a campaign "contribution." To do so would improperly burden freedom of speech and the open exchange of ideas.

But why should the media - corporations who already have a great big soap box - have greater rights than those who must rent that soap box?

The answer is not obvious. Legacy media often argue that the press is "special" - sort of like a utility - that is responsible and trustworthy in a way that people who have to pay for space in their pages and time on their air are not. This is not only a dubious distinction (there is no reason to assume it is true), it is an increasingly incoherent one. Barriers to entry in the communications field have fallen away. Anyone can build a website. Anyone can stream video content. The only thing that distinguishes those who can charge others to be included in their content from others is market power. Market power seems like a poor basis on which to allocate speech rights.

Isn't their a difference between "legitimate" news stories and a sixty second ad spot? Not always. An ad may well reveal important information that the legacy media has ignored. For example, the recent Benghazi hearings highlighted disclosures that Hillary Clinton apparently knew - or at least believed - that attacks on the American embassy were organized terrorism and not a popular uprising in response to a video critical of Islam. Yet she seems to have told - or at least acquiesced in telling - the public something else. One would think that this was a compelling disclosure - one of Watergate-like proportion. But, while you may find the facts buried in the ninth graf, the legacy media has blown off the story. Its journalists have generally preferred to emphasize Clinton's supposed "triumph" at the hearing by which they seem to mean that she did not go all Col. Nathan Jessup on Trey Gowdy. (Indeed, Washington Post fact checkers have tied themselves into knots to avoid acknowledging the obvious.)

But even if you dispute my view of the matter, a sixty second "phony issue" ad pointing out another view would seem as relevant to the public's right to know and as much a contribution to our public discourse as anything in the pages of the Washington Post or seen during the nightly news.

Nor can we assume that the media is not a "special interest." Just about anyone - including people with a variety of interests - can own a media company. In any event, what the New York Times wants is not intrinsically of greater value than what George Soros or David Koch want. It should have no greater First Amendment rights.

Monday, August 31, 2015

The Wall Street Journal
somehow got its hands on internal GAB e-mails regarding the John Doe.
The Journal Sentinel reported on the revelation but decided to make the
thrust of its story the belief of one GAB staff attorney, Shane Falk,
that Scott Walker really was a target of the investigation. This
contradicted a public statement by Special Prosecutor Fran Schmitz that
he was not. There was, apparently, bickering among the prosecutors.

I think the paper missed the story. Completely.

The more significant revelation - completely unreported by the
Journal Sentinel - was that Falk was concerned about the impact of
Schmitz' statement on the Burke campaign. Following Schmitz' statement
that Walker was not a target, Falk blew up. He wrote three consecutive
e-mails (including one that accused Schmitz of lying) that included the
following:

If you didn’t want this to have an effect on
the election, better check Burke’s new ad. Now you will be calling her a
liar, This is a no win. I encourage you to roll with it, or tone down
the press release a bit more to focus on how many times you said
‘alleged’ or say that people are drawing conclusions that have not yet
been proven in a court of law or something.

In other words, a lawyer from the GAB was concerned that Schmitz was
hurting the Burke campaign. That's a rather significant revelation.

Now, I appreciate that there is a benign reading of this. Falk may
not have wanted the investigation to affect either candidate. Of
course, there is no indication that he expressed concern over other
statements and leaks which placed Walker in a bad light. But perhaps
they just haven't come to light.
In addtion, the e-mail must be read in
light of Falk statement - in another e-mail - that the "sheeple" who
elected Walker might have done it even in the absence of what he
regarded as "dark money" and "propaganda."

But more fundamentally, it ought to have been no concern to Falk how
the GAB or prosecutors' actions affected Burke's campaign. She decided
to turn the investigation into a political football. If the guy in
charge of the investigation didn't think the investigation pointed to
Walker, it should have been of no moment that this contradicted a Burke
campaign ad. She, after all, was the one who decided to run it. If
Falk thought Schmitz didn't understand the investigation he was running,
that should have been the issue - not concern for Burke.

No matter how you view this, I should think the fact that a
supposedly non-partisan and neutral investigator was complaining about
contradicting Burke's politicization of the investigation is quite
newsworthy.

Tuesday, August 25, 2015

We see two political sentiments motivating powerful minorities of voters. The first is nativism, seen in the candidacies of both Donald Trump and Bernie Sanders. The targets are illegal - and sometimes legal - immigrants and free trade.

There are some legitimate concerns about the former. A nation ought to have a secure border and need not accept persons in the country unlawfully as a complete fait accompli, entitled to all the accoutrements of citizenship. But mass deportations are both unrealistic and undesirable and our economic woes are not caused by hard-working Mexicans.

Trump and Sanders' railing against free trade simply highlights their shared economic ignorance. And, no, the fact that you can make money on real estate deals and licensing your name does not mean you understand how governments ought to regulate - and not regulate - markets. It means you know how to get yours. Nothing wrong with that, but it is not necessarily a translatable skill in this context.

But Sanders and Trump are doing well (although neither will ever command a majority) and much of their appeal is not about the particulars of immigration policy or international trade, but, as I say, the sentiment. It is about the notion that our problems can be blamed on someone else. They are doing something to us. What we need to do is blame them.

The #BlackLivesMatter movement operates in an equally emotion-laden but fact free environment. There are indeed enormous problems - including enormous problems with violence in the black community - but they are not caused by the police. Even if we assume that all are unjustified, officer-involved shootings are, at most, a rounding error in calculating black victimization rates. Indeed, while the question is vexed, it is not clear that blacks who have contact with police are more likely than whites who have contact with police to become involved in a violent confrontation with officers.

Anytime a police officer uses force against a citizen a thorough investigation is in order. Because we must allow some people to use lethal force to enforce the law, we must ensure that they use it only to enforce the law and only to enforce it. But politicizing the question is flat out demagoguery.

And it is evasive demagoguery. It is the demagoguery of a grievance industry that has failed to deliver in much the same way as the nativists egged on by Trump and Sanders will fail to deliver.

Monday, August 17, 2015

In a column yesterday in the Milwaukee Journal Sentinel, Emily Mills argues, again, for a blatantly unconstitutional campaign finance scheme. She wants public financing with limits on expenditures. The law is clear that expenditure limits can be imposed on only on candidates who choose to accept public financing. It is also clear that expenditure limits cannot be imposed on those who those who refuse it. The law is clear that independent persons and organizations remain free to spend what they want.

But Mills apparently wants to go beyond that. She wants to stop spending and then permit it to continue on those terms that she approves of. As she puts it, she wants to kick everyone out of the pool and then invite every one back into the pool - if they'll play by the Mills Rules.

But the Supreme Court has said that you can't kick people out of the pool. You can't prevent people from combining their resources (although you can limit the size of contributions to candidates) and using them to express themselves on candidates and issues.

I do appreciate that people on the lament this robust protection of association and expression just as they increasingly oppose the rest of the First Amendment. The omelette of equality requires breaking a great many eggs, if you will.

Tuesday, August 11, 2015

There's really no question that Donald Trump's performance in the GOP debate was childish and boorish. Often he simply blustered and stumbled to barely coherent responses, He bragged about buying politicians and stiffing his creditors. He whined about being treated unfairly and confused common standards of decency with political correctness. He asked us to believe that he can bend foreign governments to his will. Yet he can't even handle Megyn Kelly.

In the days since then, he's only made it worse. I understand that Twitter is not exactly a forum for the expression of any thought that is much more than a sentiment, but his feed reads like that of an over fresh high school kid. The man is an embarrassment.

And yet there are people for whom he apparently strikes a chord. They are either willing to overlook his aggressive ignorance and peevish megalomania or, worse, mistake them for virtue. Some of us seem to believe that the more a politician shows disregard for common courtesy and the facts, the more he's speaking "truth" to some imagined "power." They mistake bombast for candor and vulgarity for strength.

When Trump is wrong (and he often is), his supporters see it as being "unscripted." They see his complete lack of depth and detail on any policy question as a commitment to "action" rather than "talk." That no one seems to know what that "action" will be (other than building a wall on the border) does not matter. The guy builds a few casinos, licenses his name to a lot more and fake-fires people on television. He'll get stuff done.

Some on the left want to say that Trump offers some kind of unveiled conservatism, but that's preposterous. He is not conservative. He is a big government crony capitalist who has fed at the subsidy trough and advocated for eminent domain abuse. He is pro-choice (or was, until yesterday afternoon) and a supporter of Obamacare. He has contributed to Hillary Clinton. If anyone in the current GOP field would share Obama's ambitious view of what a President can and ought to do - who would use his pen and phone rather than the tools the Constitution provides - it is Trump.

I am not sure that much of his support can be articulated in political terms. He is, as some one wrote, the first "post-policy" candidate. His proposals generally boil down to "I'll be terrific." He is someone who appeals to voters who judge politicians in the same way that they judge movie stars, mistaking celebrity for competence and peacock bravado for insight. He may be the first sign, as Neil Postman once wrote, that we may well actually amuse ourselves to death.

But nothing is that simple. Trump does tap into a resentment of the status quo that can be found across the political spectrum. He appeals to the belief that there is a "they" out there (including, ironically, guys like him) who are taking advantage of guys like us. Who better to tame the one-percent than one of their own? His sometimes ugly appeal to nativism - blame Mexico! blame China !- is present on both the left and the right. Trump wants to build a physical wall. Bernie Sanders wants to build one with trade restrictions.

But he has an appeal to some conservatives as well. For those inclined to the right, there is frustration that our leaders too often assume office and come to prefer power to principle. They don't reshape our government as much as they reshape themselves. Maybe someone who doesn't act like a politician will be different. But, of course, difference is only different. It's not necessarily better.

Because his appeal is to sentiment and not reason, it's just about impossible to argue with a Trumpkin. They have as little patience with reality as he does. They seem to believe that Putin will swoon before the Donald's faux Alpha Male persona. He'll do things that no one else can or will do because … well … just because.

This is a very limited appeal. Trump does worse in two-way match-ups than almost anyone in the GOP field and he will never get more support than what he has now. Sixty-two percent of the public say that they wouldn't vote for him under any circumstance.

And the support he has will erode. It is easy to say you like someone to a pollster, but harder to actually vote for him. When a candidate's appeal is novelty and entertainment and the frisson of poking in the Man in the eye, he has a short shelf life. These things get old and boring.

In the end, politics is not about emotional release. However real the frustrations of the left and the right, populists like Trump are rarely the answer. The government cannot be seized by a strong personality who will make the world anew. It cannot be restructured by someone who refuses to understand the issues and offers his impatience for them as a virtue. Playground bullying - name calling and strutting - do not constitute discourse.

Eventually the voters - or enough of them because you can fool some of the people all of the time - figure this out. Many of the people who now support Trump haven't thought much about it. But they will.

Monday, August 10, 2015

Ernie Franzen says that Scott Walker should listen to local school principals who 1) want more money from the state and 2) want the state to leave them alone to spend this additional funding as they wish. These principals bemoan the fact the local school boards have much less control over school funding and operational decisions than they did just "a few decades ago." He notes that some of them come from Republican areas - as if school boards in those areas imposed political litmus tests on their hires.

Here is a fact that the legacy media seems allergic to: Over almost any significant period of time you want to look at, per pupil expenditures on K-12 education has increased at a rate well above the rate of inflation. For example, according to the United States Department of Education, from 1987 to 2012, real per pupil spending on K-12 education in Wisconsin increased from $ 7960 to $ 11,946. That is a real increase of 50.1%. This is exclusive of federal funds (which have also increased).

No, that is not a misprint. During the same period that the principals bemoan the loss of local control, local school districts got 50% more to spend. Now, I remember 1987. It wasn't a different world. Urban school districts had challenges. Teachers had to be paid. Children were learning.

During this same period in which school districts received much more funding, certainly we saw improved results. No. No, we actually didn't. By every measure we have, achievement and attainment remained flat. We spent a lot more money and we didn't get any smarter. And while it is true that spending has stepped back a bit since 2011 (although the increase in real spending over the almost any relevant period remains robust), Act 10, like it or not, also substantially reduced school costs. However you look at it, over the "a few decades." schools have gotten a lot richer and haven't got any better.

Now, I suppose it is possible that schools that enjoyed a 50% real increase in funding while yielding no improvement in results are "underfunded." But it sure is unlikely. In fact, the claim is pretty much preposterous.

There is no doubt that local control has diminished during this same period. School districts have revenue caps and Act 10 restricted the scope of collective bargaining. Federal money is never ever free,
But it hardly lies in the mouths of local school districts to question the founders of their feast. If the state is going to substantially increase its share of the bill for K-12 education, it is going to want to make sure that the money is spent properly. It may do this well or poorly, but it is going to do it.

Saturday, July 25, 2015

In the wake of the Wisconsin Supreme Court's decision on the John Doe investigation, SpeciaL Prosecutor Fran Schmitz issued a strident statement criticizing the Court's decision. Losing an important case is always disappointing and a lawyer is certainly free to publicly differ with the outcome. But Schmitz' statement is revealing.

He says the Court's ruling "defies common sense" because now someone who contributes $ 25 to a candidate will have his or her name disclosed while someone who gives $ 100,000 to a group who closely coordinates with a candidate will not. That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.

Explaining this stuff in a column length piece is difficult, but here is the problem in a nutshell. The state's campaign finance law applies only to expenditures undertaken for a "political purpose." The statute defines this as anything done to influence an election. Every lawyer with a passing familiarity with campaign finance law knew that this definition was unconstitutional. To avoid that problem, the Government Accountability Board has sometimes - but not always - made clear that the law is limited to express advocacy - calls to elect or defeat a candidate - or its "functional equivalent." Something is the "functional equivalent" of express advocacy only if it is susceptible of no interpretation other than a call to elect or defeat a candidate. This is not my opinion. It is textbook constitutional law.

But the Doe prosecutors were attempting to apply the law to expenditures for things that were not express advocacy or its functional equivalent, i.e., to things that are normally not subject to Wisconsin's campaign finance law. They justified their actions by alleging that these expenditures were "coordinated" with the Walker campaign. The concept of coordination has long been known in campaign finance law but little understood and rarely explored. Wisconsin law does not adeaquately define it or make clear the type of expenditures to which it might be applied.

That's a huge problem. When the state seeks to regulate political activity, it must do so in a very narrow and very clear manner. If it wishes to treat coordinated expenditures as contributions to a candidate, it must adequately define both the conduct that conduct that comprises "coordination" and the content of speech that might be considered "coordinated." This is essential because a failure to do so will deter constitutionally protected speech.

Because its definition of "political purpose" is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy. For that reason, it could not be applied to the activity being investigated by the Doe prosecutors. While Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it.

If that's not convincing enough, the Doe decision was very much in line with a decision of the Seventh Circuit Court of Appeals which, in a case that did not involve allegations of coordination, also limited the scope of Wisconsin's campaign finance law to express advocacy. It may well be possible for the legislature to pass reasonable disclosure requirements for certain forms of issue advocacy that have been coordinated - in very clearly defined ways - with candidates. If Mr. Schmitz wants the name of that $ 100,000 donor disclosed, he ought to ask the legislature to rewrite the law, not try to throw people in jail.

And therein lies the real tragedy of this episode. I have no problem with lawyers talking aggressive legal positions. I frequently tell my colleagues that if we don't lose a few cases, we aren't trying hard enough to push the law in the right direction. But we don't have the power to send men with guns to people's homes. We can't lock people up. Particularly when the conduct in question involves constitutionally protected political speech, it is absolutely not proper to advance aggressive theories of the law in pursuit of criminal prosecutions.

And this brings us to the raids. Schmitz objects to the Court's characterization of the details of the raids. It doesn't matter. Let's step back and consider what happened here. At the instigation of the Democratic prosecutor of Milwaukee County, a five year long investigation into one side of the political spectrum was conducted. In it's initial iteration, it found almost nothing that it set out to find. That Democratic District Attorney doubled down and launched a new probe. In aid of this latter investigation, prosecutors blanketed Wisconsin's conservative infrastructure with astonishingly broad subpoenas and launched pre-dawn raids on the homes of certain activists. They told the targets that they could tell no one what was being done to them.

There is no dispute about any of that and, quite frankly, other details about the raids don't matter. If true, they merely aggravate the offense. Treating political activists like drug traffickers is highly unusual and sends a clear message to others. Get involved in politics and you may be treated like a criminal.

While Democrats are decrying the state Supreme Court decision, they ought to be relieved. It would have been short work for a Republican prosecutor to launch a similar probe into Democratic operatives. That would have been just as wrong, but if the Doe had been permitted to continue, aggressive investigations of one side by the other would have become the new normal in Wisconsin politics.

Saturday, July 18, 2015

In describing last week's budget, a number of commentators
have suggested that the legislature has "ended the weekend." This is
because state law will no longer forbid people from working seven days in a row
without the permission of the government. Wisconsin will now permit them to do
so voluntarily. Critics fear that consent will be "coerced."Such coercion would, of course, be illegal
and, while it would also be unlawful to fire an employee for complaining of
coercion, some workers may be reluctant to do so and retaliation might be hard
to prove. Coercion might have happened under the old law (i.e., employers
demanded seven days in a row even though it was illegal), but it is certainly
easier to establish that a person worked seven days in a row than to prove he
did not "really" consent to do so.One commentator went so far as to say that, under the new law, a day
offwill be restricted to the
"privileged few."

Here's a fact little known by our friends on the left. In
the actual world (you know, the one we really live in), all sorts of good
things exist that the government does not make mandatory. We know that the GOP did not end the
weekend. We know that days off will
not be limited to the "privileged few."We know these things because there are 37
other states that permit people to work seven days in a row. The weekend is
alive and well in each and every one of them. In the vast majority of cases,
employers have to offer time off in order to attract workers.

It certainly is possible that there will be some cases in
which persons who do not want to work a seventh day will feel pressured to do
so - just as, under the old law, there
have been cases in which persons who did want to work seven days in row were
prevented from doing so. I have no way of knowing which group is larger, but I
am fairly certain that the government does not either. Even if we assume that
the former group is much larger than the latter, I have no way of knowing how
employers react to an absolute prohibition on people working seven days in a
row. While it was possible for employers to ask the government for a waiver,
doing so is expensive (for both taxpayers and employers) and there is
absolutely no reason to think bureaucrats will have any way of knowing when
permission "should" be granted.

Certainly a mandatory day off law will impose inefficiencies
and increase the cost of labor. Perhaps instead of hiring a full time person,
businesses hire two part-time employees. Others may reduce staffing levels.
These effects are hard to identify, but they there.

So we know that a mandatory "time-off" law will
prevent some workers from doing what they want. It will impose costs on some employees
(for example, in the form of reduced hours) and businesses. Those businesses
most effected may be Mom and Pops with few employees and less scheduling
flexibility.

None of these costs can be ignored. They must be weighed
against the benefits of a law that prohibits even voluntary work for fear that
some workers will be illegally coerced and unable to prove it. Do the benefits
of a mandatory day off requirement outweigh the costs? I don't know, but it
seems very unlikely. Freedom should be the default rule. The legislature of
Wisconsin - and 37 other states - has got it right.

Monday, July 13, 2015

I appreciate that people who want civil marriage to include gay
and lesbian couples are going to applaud the decision in Obergefell v. Hodges. If you get what you want or what you believe
to be right, it’s easy to overlook how it happened. But I want to suggest that
all of us, no matter how we feel about marriage, should be deeply disturbed by
the Supreme Court’s decision.

Here’s where you have to start. Five members of a group of
nine lawyers decided that the marriage laws adopted by the people in 35 of the
50 states cannot be enforced. These five lawyers – who we did not elect and
cannot replace – “found” that constitutional language adopted in 1868 means that no state can define marriage in the way it was defined by every
society in human history until 2001. Not only was the traditional view (which was shared
by the President and putative Democratic nominee until, figuratively, about six
minutes ago) wrong, the Court says, but it was so egregiously wrong that it can
no longer be permitted - no matter what a political majority may want.

Think about this. In applying principles like “liberty” and
“equality,” it is essential that courts develop disciplines and limitations
that will, as much as is possible, anchor their meaning in some source of
authority other than the personal preferences of the judges who happen to be
deciding the case. If this isn’t done, then judging becomes indistinguishable
from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the "dead hand of the past" but to recognize that it was the consent of a past generation that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to.

The traditional guideposts and practices that the Supreme
Court has developed for interpreting the Constitution’s guarantees of “equal
liberty” and “due process” make it extremely difficult to find a constitutional
obligation on the part of states to extend their marriage laws to same sex
couples. Don’t take my word for it. When Justice Elena Kagan was nominated to be
Solicitor General in 2009, , she explained that by “the best measure I know for
determining whether a constitutional right exists, there is no federal
constitutional right to same-sex marriage. “

This is not to say that one cannot attempt to argue for such
a right using commonly accepted modes of legal analysis. While I disagreed with
her conclusion, Judge Barbara Crabb, in striking down Wisconsin’s limitation of
marriage to unions of one man and one woman, attempted to do just that and did
it about as well as it can be done.

But in Obergefell,
Justice Kennedy did not even try. His opinion might be a persuasive political
argument, but it bears resemblance to law. While he suggested that a right of
same sex marriage is rooted in the Constitution’s express guarantee of equal
protection of the laws, he did none of the work that equal protection analysis
requires. That would have required him to identify the standard for assessing
distinctions drawn on the basis of sexual orientation (or, some would argue, gender)
and then carefully balance the harm caused by the limitation of marriage to
male-female unions and the reasons that a state might do so. You won’t find
that in his opinion

Instead, Justice Kennedy emphasized the Constitution’s
injunction against depriving persons of liberty without “due process of law.” The
Court has, on rare occasions, read this provision to mean that there are
certain things that the government can’t do even if does extend due process.(If this strikes you as odd, it should.) Those
cases have, from time to time, recognized a fundamental right to marry, even
though the Constitution itself says nothing about marriage.

This creation of such extra-textual “substantive due process”
rights is quite controversial, but let’s put that aside. No previous cases
involved anything other than the traditional view of marriage as a male-female
union. Each one involving the right to marry made the challengers behavior a
crime. That was not the case here. There’s no getting around the
fact that, for better or worse, same-sex marriage is a very dramatic change and
the idea that our Constitution compels
it ought to give one pause.

If you were arguing for a change in marriage law in the
legislature, you’d have an easier task. You could say that it is morally right
to let gay couples marry. You could claim that it is good public policy to use
marriage to facilitate same-sex relationships. But the Supreme Court has no authority
to tell states that they cannot do something simply because a majority of its
justices think they’re wrong and it just isn’t fair. That’s not judging. That’s
legislating.

The danger – the reason that you should care even if you
support same-sex marriage – is that lawyers work by analogy. In Obergefell, Justice Kennedy says that
there is some type of constitutional right to express and define one’s
identity. Even if you are sympathetic to the idea of rights that are not
themselves expressed in the Constitution, this approach is completely
unbounded. It can be employed in support of just about any rights claim and if
it was proper to use it in Obergefell,
then it’s hard to see why it won’t be proper to use it again. If today’s “new
understanding” is that the Constitution means that marriage laws must include same sex couples,
tomorrow’s might mean that I have the right to polyamorous marriage or to pay
my workers whatever they’ll agree to take or to avoid military service. The
contours of the Constitution and the restrictions it might place on democratic
decision-making will be limited only by the human imagination.

In a scathing dissent, Justice Scalia wrote, that while it
was not important to him what the law said about marriage, “[i]t is of overwhelming importance, however, who it
is that rules me. Today’s decree says that my Ruler, and the Ruler of 320
million Americans coast-to-coast, is a majority of the nine lawyers on the
Supreme Court.”

Saturday, July 04, 2015

Two days ago, the Joint Finance Committee inserted language into the proposed state budget that would have substantially - actually almost completely - immunized the legislature from the state's open records law. It's a very bad idea and it was greeted by spontaneous opposition from groups across the political spectrum, including my organization, the Wisconsin Institute for Law & Liberty who released a joint statement with the John K. MacIver Institute for Public Policy.

There is a reason we issued the statement in collaboration with our friends at MacIver. This time, it is Republicans who want to restrict government transparency. Four years ago, it was Democratic legislators who stonewalled MacIver's request for information. We represented MacIver in a lawsuit against Sen. Jon Erpenbach (D- Middleton). In defending against our suit, Sen. Erpenbach, at great public expense, argued, in part, for a view of the open records law that was just as bad - just as protective of the legislature's desire to keep things secret - as what the JFC attempted on July 2.

We won. Sen. Erpenbach's attempt to largely immunize the legislature from the open records law failed. The JFC's effort will fail as well. I predict that it will be pronounced dead, dead dead before noon on Monday. If it ever did get passed, my guess is that the Governor would veto it.

I understand that people in government don't much like the open records law. Compliance is time-consuming. The law was passed before the digital age - before things like e-mail exponentially increased the number of "documents" that individuals and organizations generate. In a world of simple-minded social media and hash tag philosophers, any effort to be candid in writing is likely to be turned into distorted attacks by partisans who either are incapable of understanding - or have no interest in - context.

Perhaps the law can be improved. But, as I said in our statement, transparency is the price you pay when you get to spend taxpayer dollars.

Tuesday, June 30, 2015

I am working on a several pieces regarding the annual early summer flurry of Supreme Court decisions, including the decision on same sex marriage and what I think it portends for the future. Without regard to whether the extension of marriage laws to same sex couples is or is not a good idea. I think that the Court got it wrong. In fact, as a matter of law (as opposed to public policy or moral philosophy), it is one of the worst decisions I have ever read. This is not because it recognizes same sex marriage. While I think the notion that the Constitution has anything to say on this is quite wrong, one could have written a much better opinion to argue that it does. In fact, Judge Barbara Crabb, even though I disagreed with her conclusion, did precisely that in striking down the definition of marriage chosen by the people of Wisconsin.

The problem with last week's decision is the standardless way in which it was done. This will now haunt the law in other areas. It is just not resemble anything that we might properly call legal reasoning and it has no boundaries. Although the Court feinted in the direction of equal protection, it engaged in nothing resembling equal protection analysis. Rather it relied on a handful of cases recognizing a free floating right to either be free of laws that restrict your ability to define yourself (or, in this case, to demand the application of laws that help you to do so). If that's permissible, then the Court can strike down almost any law depending on what the current crop of Justices believe that self-definition requires. Our democracy will exist at the sufferance of unelected judges. But more on that later.

I wanted to post now to respond to a misstatement in a Journal Sentinel editorial praising the decision. (I'm helping them out this week.) The editorial board wrote that thirty-six states allow same sex marriage and that Friday's decision simply compels the fourteen remaining states to go along. This makes it seem like the Court simply roped in a few outliers. That's not accurate. In fact, only eleven states and the District of Columbia (all of them about as blue as you can get) decided to allow same sex marriage through democratic means. Another five have adopted it by the command of a state court interpreting a state constitution. All of the remaining states in which same sex marriage is recognized ("allow" is the wrong word; same sex couples were "allowed" to exist everywhere) did it by command of the federal courts. Most of those decisions came after Justice Kennedy had clearly signaled that there were five votes for Friday's result in the Windsor decision in 2013. Perhaps all of these states would have come to extend their marriage laws to same sex couples, but we'll never know.

If last week's decision had gone the other way - if no right to same sex marriage had been found - all of those federal decisions would have been effectively overruled and the law in each of those states, including Wisconsin, would have returned to what it was before a federal court had intervened. So last week's decision actually invalidated or affirmed the invalidation of the law in thirty-four states.

This is not just a pedantic or technical point. In the history of the Court, I can think of only few decisions - maybe as few as one - that imposed so radical a change on so many states. Love it or hate it, the Supreme Court has done something that it rarely does. You'd think there would be a strong legal basis for it. But more on that later.

Monday, June 29, 2015

My friends at the Journal Sentinel editorial board like the Supreme Court's decision in King v. Burwell. Fair enough. My take is different. But they get some things about it wrong. Let me offer the following friendly correctives.

First, they say that they always regarded the challenge to the availability of subsidies in federal exchanges to be frivolous. They are entitled to that view, although how non-lawyers presume to know that is beyond me. The frequency with which lay people dismiss legal positions as frivolous is one of my pet peeves. To call a claim "frivolous" is not to say that you think its wrong or even unlikely to prevail. It is to say that no lawyer could make a reasonable argument for it. The claim in King v. Burwell was not even close to frivolous.

But don't take my word for it. Here's who also didn't think it was frivolous. Every member of the United States Supreme Court. Obviously three Justices thought it meritorious. But writing for himself and the other five, Chief Justice Roberts said that "[p]etioners' arguments about the plain meaning of Section 36B are strong." Sorry, guys, "strong" is not the same as frivolous.

Second, they say that Chief Justice Roberts, reading the statute in context, found the answer to be "clear." No, he did not. In fact, that is precisely what he did not find. He went to great lengths - did "somersaults" and interpretive "jiggery-pokery"* in Justice Scalia's colorful terms - to find that the statute was not clear. It was ambiguous. That's important . Unless he could say that it was ambiguous, he would have no choice but to apply it as written.

Third, Chief Justice Roberts made no finding about legislative intent - at least not in the way that courts typically do. He did not scour the legislative history and learn that "Congress" had expressed an unrealized intent to have the subsidies available in federal exchanges. He couldn't. The legislative history is almost completely silent on this question.

Fourth, whatever Congress did, it was not, as the board puts it, a "clerical error." Any minimally competent lawyer who read this language would know immediately that it limited subsidies to state exchanges. In fact, if that what's you wanted to do, this is precisely how you'd go about it. This was no typo. (If, in fact, Congress did intend subsidies to be paid in the federal exchanges, it should frighten us all that none of the expensive lawyers who populate the District of Columbia caught this.)

Finally, the Board kicks dirt at the idea that courts ought to apply legal language "literally" as if statutory construction was best seen as a jazz riff. You might as well criticize your doctor for "literally" applying what she learned in medical school. Reading statutory language to do what you think will make a law work better (and, therefore, must be what Congress "really"meant) necessarily requires that you form your own judgment about what the law is supposed to do and how that should be done. But that will almost never be obvious. Even in King, the Court had to decide that Congress was not limiting subsidies to state exchanges in order to provide states with an incentive to create them. It had to decide that the possibility that the absence of subsidies would lead to adverse selection in federal exchanges such that Congress simply could not have meant what it seemed to say. Whether you think they got it right or not, these are legislative - not judicial - judgments.

The one thing about "formalistic" and "literal" applications of the law is that they prevent judges from doing whatever they want. They respect the separation of powers. I don't think any particular law - no matter how much we may like it - is worth abandoning these foundational elements of our constitutional structure. If the ACA needed saving, it was a job for Congress and not the Supreme Court.

Tuesday, June 23, 2015

Whenever there is one of these awful mass shootings, someone somewhere will blame some aspect of "society" for what happened. A collective "we" are said to share the blame and the actions of a mad man and whatever demons possessed him must be understood in the "context" of some social evil. There is usually a political slant. "Privileged" people don't value less privileged people. "Elites" encourage nihilism and resentment toward society.

President Obama went so far as to indict America for the Charleston shootings, falsely claiming that these shooting "don't happen" in other developed countries. This will come as a surprise to the people at Charlie Hebdo in Paris, the AUF summer camp inTyrifjorden, Norway, the Tasso da Silveira Municipal School in Rio or the Dunblane Primary School in Scotland. It would have been accurate to say that mass shootings are more frequent in the United States but adding even that level of nuance would have stepped on his preferred narrative.

Of course, we can all play this game and find the villain we want, serving whatever hash tag philosophy we prefer. We can use the Charleston shootings to denounce white racism and public insensitivity to questions of "privilege." When two black teenagers set a kid on fire in Kansas City for being a "white boy" or a couple of cops in New York are executed as "revenge" for Eric Garner, we can blame black racism and pundits who play "the race card."

If I want to rail against environmental extremism, I've got the Unabomber and Earth Liberation Front. If I want to smear folks who don't like the federal government, I can invoke Timothy McVeigh. If I think Islam is a problem, I invoke the Fort Hood shootings. If I'm worried about anti-Muslim bias, I can point to the Sikh Temple shootings. Anti-gay animus? Matthew Shepherd. Gay hostility against Christians? The shootings at the Family Research Council.

Even if a shooting was demonstrably not motivated by whatever or whomever we want to blame, folks will do it anyway. The "Tea Party" was blamed for the shooting of Gabby Giffords even though the shooter turned out not to be a political conservative. Even fifty years after the fact, supposedly responsible writers blame "the right" for the assassination of John F. Kennedy even though Oswald was a Marxist who targeted Kennedy for his anti-communism.

Sometimes violence is a manifestation of an organized political movement and it makes sense to treat it as such. But more often - at least in this country - lunacy precedes whatever rationale the lunatic chooses, The Charleston shooter rooted his insanity in racial animus but this tells us little about the state of race relations or what, beyond denouncing his vile delusions, to do about them. The confederate battle flag, for example, should not be flown in any context that implies official approval of the confederate cause which is inextricably intertwined with slavery. But the flag did not make him do it. Take it down, by all means, but removal of the flag will not make future violence less likely.

Some of this rush to politicize the actions of crazy persons is shameful opportunism, but not all of it. Events like the Charleston shootings are inexplicably evil. The notion that they may be random and unpredictable and beyond our control is frightening. We want to believe that we can order the world to prevent them. We want to believe that we can alter humanity's attitudes or relationships in a way that will assure that no human will do things like this. In a sense, when we believe that the wrong politics are to blame for unfathomable crimes and that new attitudes or social arrangements will prevent them, we are like Job crying out to a different type of God.

But Job got no answer and I'm afraid that we won't either. The problem is not in our politics, it's in ourselves - not as products of bad ideologies but as broken individuals.

Thursday, June 11, 2015

I think that there are very respectable arguments against public support for a new arena. But one that is not respectable goes like this: The guys who own the Bucks are billionaires. They can afford to pay for an arena.

Over at Right Wisconsin, I explain why. The point is not whether Marc Lasry and Wes Edens could pay for a new arena. It's whether it is in their interest to do so. Few people, even billionaires, give money away simply because they can. If Milwaukee wants someone to buy the Bucks and keep them here, it may need to pay them because it is asking them to do something that is not profit maximizing. The team would be worth more in Seattle. It is a fair criticism to say that we ought not give money to billionaires. But we've got to acknowledge that, in asking some billionaire to keep the Bucks in Milwaukee, we are asking him to give something to us.

But it turns out to be that it is very likely that Edens and Lasry should be willing to contribute something to the arena. You can thank Herb Kohl for that.

Descriptions of of the sale of the Bucks form Kohl to Edens and Lasry gives the NBA the right to buy the Bucks for $ 575 million should the arena not be built by 2017. In technical terms, the current owners do not have a "put" (the right to make the NBA buy the team), the league has a "call" (the right to make Edens and Lasry sell it.) The distinction is critical.

Edens and Lasry bought the team for $ 550 million. It may well be worth more than that today. Shortly after the Bucks were sold, the Los Angeles Clippers sold for $ 2 billion. The NBA has a very lucrative TV deal and, while the Bucks in Milwaukee are not going to be worth what a team in Los Angeles is worth, they may are almost certainly worth more than what they sold for. In a larger market (say Seattle), they would be worth a lot more.

But Edens and Lasry can't just move the team to Seattle. As Dan O'Donnell points out, if Milwaukee refuses to build an arena, the NBA will make them sell the team to the league. The league will then auction it off to the highest bidder. The profit (save $ 25 million) will be enjoyed by the NBA and the other 29 owners - not Edens and Lasry. If this is so, then Edens and Lasry need the arena deal to get done. They should be willing to pay something to make that happen - not because they "can afford it" but because it is in their interest.

But they won't necessarily be willing to pay for the entire cost of the building and perhaps not more than they have already agreed to pay. It all depends on what the team is worth - in Milwaukee. That is also critical. Unless the people negotiating this deal for the state are incompetent, the final arena deal will be structured in a way that ensures that the team remains in Milwaukee for a long time. The Milwaukee Bucks may be worth more than $ 550 - or even 575 - million, they will not be worth what the Seattle Bucks would be worth.

Let's try an example. Forbes estimates that the Bucks are worth $ 600 million in Milwaukee, but that's not necessarily all they would sell for - even if they must remain in place. Forbes says, for example, that the Clippers are worth $ 1.6 billion. Yet that franchise sold for $ 2 billion. If you assume that the Bucks could be sold for a comparable 25% premium over Forbes evaluation, they might fetch $ 750 million. If that's so, then Edens and Lasry's $ 150 million is close to the top of the range of what we can expect them to contribute.

I don't pretend to know what the team is worth or what the owners should be willing to pay. I make only two points. First, if they believe that the team is worth more than they paid for it, they should be willing to contribute something for the arena because they may lose that added value if it is not built. Second, because they must keep the team in Milwaukee if the arena is built, what they will be willing to contribute is going to be less than what it would be if they were free to do whatever they wanted with the team.

Tuesday, June 02, 2015

Sometimes it seems that politicians speak to make noise. To be sure, it is strategic bloviation. They string together of buzz words - lots of adjectives and emphatic ipse dixits - designed to evoke a mood, but nothing resembling an argument. As one of the characters in HBO's VEEP observed, it's all "noise-shaped air."

One of the worst offenders is Rep. Sondy Pope (D-Cross Plains). Recently, she put out an incomprehensible press release accusing School Choice Wisconsin President of "misrepresentation" of the demand for the choice program. SCW had put out a press release noting that the there by had been an increase in applications for the state wide Parental Choice Program. The problem, according to Rep. Pope, is that some of the applicants for 2015-2016 were in the program in 2014-2015 and should therefore be excluded from the number of applicants in the latter year.

That is, of course, gibberish. These students "demanded" the program in 2014-2015 and continued to "demand" it in 2015-2016 by applying to remain in it. One does not calculate the level of demand for a given good or service by excluding those who demanded it in the past. If I want to know what the level of donations to the Wisconsin Institute for Law & Liberty were in 2014, I don't exclude those who renewed donations that they made in 2013.

But I really wanted to focus on Rep. Pope's response to a memo by the Legislative Fiscal Bureau that calculated how much state aid would fund an expanded statewide voucher program if a given number of students enrolled in the program over the next ten years. The memo is of limited value. No one knows how many students will enroll in the voucher program. No one knows what other factors will be influencing the level of state aid over that period. And, of course, it makes no sense to discuss funding that has been "shifted" from public schools without considering the cost savings associated with students who those schools will no longer be educating. Whether the public schools will be better or worse off by allowing funding to follow the student is an empirical question.

But that's a subject for another day. In response to the LFB memo, Rep. Pope said that the point of choice expansion was to "reward the out-of-state interests that give millions to Republican campaigns …" This is a common meme of school choice opponents. They think that someone is out there profiting from the program.

I have yet to figure out who that is. The overwhelming number of schools accepting voucher students in Milwaukee are religious schools. Are the Archdiocese of Milwaukee or the Lutheran Missouri Synod (well, it does have Missouri in its name) "out-of state interests that give millions to Republican campaigns …." In these schools, the administrators and teachers generally make less money than those in public schools. If they are "profiteering," they seem to be making a hash of it. (While there have certainly been school operators who have misused voucher funds, public school employees have been known to do the same thing.)

In fairness, Rep. Pope - or whoever writes her press releases - is not the only one who seems to have some kind of phrase generation software that produces these word salads. I suppose that there is some perceived need to emote in response to something that you don't like.

Monday, June 01, 2015

My colleague CJ Szafir has an op-ed in Saturday's Milwaukee Journal Sentinel on the proposed Opportunity Schools Partnership Program. The OSPP would, among other things, allow the Milwaukee County Executive to appoint a Commissioner who could run selected failing public schools in the City of Milwaukee. It is comparable to "opportunity" or "recovery" school districts that have been established around the country with some success.

Of course, as CJ points out, the proposal has been attacked as "racist" because … well, just because. It is apparently an act of bigotry to care about poor black kids attending failing schools. The OSPP might not work, but MPS has had twenty five years of increased funding and has failed to turn these schools around. Trying something new can't hurt.

Against this, opponents of the proposal argue that it takes away "the democratic rights" of citizens of Milwaukee. They would still vote for the Milwaukee School Board. But a limited number of schools within Milwaukee would, at least for a time, no longer be run by the School Board. City voters also vote for the County Executive - so there would still be political accountability for operation of the OSPP. The County Executive is "local" but less "local" than a school board elected by only city voters.

That is a cost. But removing those schools from the control of the Board is not a bug in the proposal; it's a feature. School board elections tend to be dominated by persons with a special financial stake in the schools, most notably the teachers' unions. This is particularly so in Milwaukee where, until recently, all teachers were required to live in the city. This has a tendency to privilege the status quo and the parochial interests of those who work in the schools rather than those who learn in them. One of the ideas behind the OSPP is to move around this roadblock to reform.

Local control of schools is traditional and valuable, although over the years it has steadily eroded, often at the behest of the "progressives" who now lament its qualification by the proposed OSPP. But if it's broke, you've got to fix it.

Sunday, May 31, 2015

Advocates of school choice - and my colleagues and I are in the inner circle so I know of whence I speak - don't wish to defend bad apples in the program. We don't rally outside lousy private schools and seek to "save them." We regard them as embarrassments and believe that they ought to be held accountable. There is a debate about how that should happen. Some of us favor removal of poor schools from eligibility to participate in the program. Others believe that parents - aided by accurate and meaningful information - should be the ones to decide whether or not to send their children to a particular school. But nobody thinks it's just fine to have schools that don't help kids enrolling voucher students.

So Jim Bender, the President of School Choice Wisconsin, does not call me and suggest we lock arms outside of, say, Ceria M. Travis Academy, an embattled school participating in the Milwaukee Parental Choice Program. But "advocates" of public education - in this case, the Milwaukee teachers union - have done what amounts to the same thing. They rallied around Auer Avenue School calling for it to be "saved" from takeover by the proposed Opportunity Schools Partnership Program.

Absolutely none of the students at Auer are proficient in reading. Not a single one.

The union rallied to "save" Auer because the reorganization of the school under the proposed Opportunity Schools Partnership Program would preclude a role for MTEA. The major obstacle to public education reform is this form of regulatory capture - the assertion of political power by those who run the system and benefit from the status quo. For them, it's may be about the kids, but never at the expense of the employees. You can't be effective that way.

And, yet, it is choice advocates are accused of pandering to "special interests" and "profiteers." The irony is palpable. The inability of people who ought to know better to see that is stunning.

Sunday, May 24, 2015

Over at Right Wisconsin, I have a column on the failure of some Republicans to support repeal of Wisconsin's prevailing wage law. My organization released a report this week that says school districts could have saved between $ 163.2 and 244.8 million over the last five years had school bonding projects been conducted under market wages instead of the so-called "prevailing wage." In an environment in which reductions in state aid to schools are regarded by many as existential or even akin to "rape," one would think that not paying more for public works than we have to would be one of those things that we can all agree on. Even if we don't want to return that money to taxpayers, you'd think that we could agree that it would be better to spend the money on schools or the University of Wisconsin.

But we can't agree. I understand why Democrats oppose reform. Part of it is realpolitik. When unions are a major source of your support, it is difficult to cross them. But they also have a principled, if erroneous, objection. For the most part, Democrats actually believe that there is some kind of Keynesian magic by which money spent by the government turns into more money. In their view, paying more for public works somehow "creates" money.

Keynes believed that there were limited circumstances in which this might be true (although it's not clear that such circumstances have ever existed) and there are certainly things that the government might buy or build that add value. But the notion that government "injects" money into the economy that was not there before is almost always wrong. We should almost never spend tax dollars with the view that the act of spending itself has intrinsic value. The question should always be on the intrinsic value of the particular goods and services that the government is proposing to buy or provide. We should never want to pay more for these things than we have to.

Still, Democrats can at least claim to be acting on principle. (Of course, it's not that simple. Democrats have a powerful incentive to believe as they do because they live on a coalition of people who benefit from government spending. There is a great deal of self interest at work.)

But Republicans presumably know better. So why does a stubborn minority continue to block reform ? There are apparently no good arguments to be made for their position because no good arguments have been made. Opponents of reform have made an uncommonly silly - and flat out dishonest - argument that eliminating prevailing wage will somehow result in the hiring of workers who are in the United States unlawfully. In fact, it would continue to be illegal for employers to do so.

So I have to believe that the opposition of some Republicans is rooted in fear. That's not unusual. Politicians, as a class, are not notable for their courage (and, yes, I understand that courage does not preclude prudence). But who are they afraid of? It can't - or at least it shouldn't - be unions. They are going to oppose vulnerable Republicans no matter what.

They are afraid of politically connected contractors. There is a lesson here.

I often hear people who don't like markets ask how we can "trust" individual businessmen to get things right. The answer, of course, is that we can't - just as we can't "trust" government to do so. But that fact is not a weakness of markets, it's their strength. Markets establish a system of competition by which the talents, ideas and preferences of millions of individual actors can be aggregated. They don't produce perfect outcomes but, in the great run of cases, they tend to produce better outcomes than any individual actor - including the government - could ever manage.

But support for markets is not the same as supporting the desires of individual market participants. Businesses don't necessarily want to compete. Competitions can be lost. The prevailing wage law is a way for contractors to minimize price competition and exclude new entrants.

Republicans need to recognize that they are the party of competition and not individual competitors.

Wednesday, May 20, 2015

This is a slightly revised version of an earlier post. I tightened up some of the descriptions of the parties' legal positions after taking a closer look at the relevant documents.
This morning I participated in panel on the future of campaign finance reform at the annual meeting of the Eastern District of Wisconsin Bar Association. The panel was a dialogue/debate between me and Brendan Fischer, General Counsel of the Center for Media and Democracy. I may comment on some of what transpired later, but suffice it to say that we see things differently.

CMD was in the news yesterday because it sued the Governor over an open records request. The organization wanted certain documents related to draft legislation (since abandoned) that would have changed the mission statement for the University of Wisconsin. I have writtenandargued that the controversy on this supposed abandonment of the "Wisconsin Idea" is not very interesting or meaningful. The Wisconsin Idea is a Rohrschach Test of a thing that, to the extent anyone thinks about it, means different things to different people. There are senses of the idea to which the UW is no longer as faithful as it ought to be and other senses of the idea to which it should not be faithful at all. I don't think changing exhortatory language in the statutes would have changed anything - for better or worse.

But I want to focus here on the request for records.

The Governor's office has withheld certain records claiming, among other things, a "deliberative process" privilege that can be inferred from the open records law's requirement that a custodian of public records "balance" the public interest in disclosure against harm that may be caused by disclosure. The Governor's office has argued that disclosing internal deliberations about legislative proposals would have a chilling impact on the free exchange of ideas.

The idea isn't crazy - privileges to protect deliberative processes are not unknown in the law - but it's wrong under our state law. Ironically, CMD's complaint cites a case that I and my colleagues at the Wisconsin Institute for Law & Liberty won on behalf of the John K. MacIver Institute for Public Policy. Just as ironically, I am inclined to agree with CMD here.

The state's open records law creates an extremely strong presumption that documents generated by government officials are subject to disclosure. The notion that they can be withheld because it might be awkward to expose the government's deliberative processes is not, as I say, a ridiculous idea, but it is one that our state legislature, in enacting the law, has rejected.

Tuesday, May 19, 2015

In an article on special needs vouchers in today's Milwaukee Journal Sentinel, reporters Erin Richards and Jason Stein report that the "chief concern" of groups opposing such vouchers is that " [p]rivate schools are not obligated to follow federal disability laws."

While I am sure that critics of vouchers make this claim, it is not, strictly speaking, true. No private schools are subject to requirement that they provide what is known as a "FAPE" - a free and appropriate public education - as required by the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). That makes sense. They aren't public schools. (They also aren't funded to provide it.)

But private schools may be subject to certain federal anti-discrimination mandates. They are not - although the Civil Rights Division of the U.S. Department of Justice apparently disagrees - subject to Title II of the Americans with Disabilities Act. That law requires public entities to accommodate persons with disabilities unless it would "fundamentally alter" the program offered by that public entity.

However, some private schools are subject to Title III of the ADA which imposes the same standard. Religious schools - which do comprise most schools participating in Wisconsin's school choice programs - are exempted from Title III, but even those schools may find themselves subject to a federal anti-discrimination norm. If they accept federal funds, they may be subject to the requirements imposed by section 504 of the Rehabilitation Act which requires accommodation if it can be achieved with "minor adjustments." The United States Department of Education, moreover, has taken the position that this "minor adjustment" standard applies generally to voucher schools.

Even if those schools accepting students with special needs vouchers were subject to no federal requirements, this does not mean that they would be "unaccountable." One would have to understand applicable state law requirements. It's hard to do that if you haven't seen the bill. "Federal" is not synonymous with "gold standard" or even, for that matter, "useful." Of course, parents would also have the ability to hold schools accountable. I understand that some people in the "helping professions" may be skeptical of the ability of people to help themselves. (It would be bad for business.) I'm a bit more optimistic.

Monday, April 27, 2015

At Right Wisconsin, I have a post on the indifference of the mainstream liberty to the civil liberties issues raised by the John Doe investigation into conservative advocacy organizations. We can debate the niceties of the prosecutors' legal theories. There are, as I have written in the past, cascading levels of legal difficulty. The prosecutors are, at best, attempting to stretch state law - and both the state and federal constitutions - for all they're worth. But beyond the merits of the investigation, it is profoundly troubling that they have adopted tactics - both in seeking criminal penalties and combining strong-arm searches with John Doe secrecy - that are guaranteed to frighten speakers and deter constitutionally protected expression.

This is why I find the legacy media's relative silence startling. Imagine, for a moment, that this had been done to a newspaper or broadcast operation. Assume an early dawn raid on the Milwaukee Journal Sentinel's offices at Fourth and State in which reporters' files were carried away and editors were told to keep their mouths shut about what had been done to them. (The prosecutors here did contemplate going after broadcast journalists.) Our newspapers and broadcast stations would be apoplectic about the "chilling impact" on freedom of speech that such tactics would have. And rightly so.

Over the weekend, the prosecutors upped the ante. It was reported that Governor Walker questioned the constitutionality and the motivation of the prosecutors. In response, Milwaukee County District Attorney John Chisholm implied that Walker might be criminally prosecuted for criticizing the investigation and questioning the motivation of the prosecutors. “As to defamatory remarks,' Chisholm said, "I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others ....”

I am going to repeat that. The elected District Attorney of Milwaukee County actually suggested that someone who criticized him should be charged with a crime.

Let's start with the easy part. This is the type of statement that will get earn a law student a very bad grade in Constitutional Law. The question is not whether Walker was "right" or "wrong." At minimum, one would have to show that Walker made statements of fact (not opinion). At minimum, one would have to show, beyond a reasonable doubt, that he knew the statements were untrue or acted with reckless disregard of their truth and falsity. Even then, there remain serious constitutional questions regarding the criminalization of political speech.There is no way - not in this country - that such a prosecution could ever succeed.

But the problem here is larger than a single lawyer's understanding of constitutional law or appreciation for the First Amendment. Any lawyer who suggests that political speech should be criminally prosecuted might expect to be laughed at. But when that lawyer has the power to invoke the machinery of the criminal law, it is no longer a laughing matter.

Wednesday, April 22, 2015

A recent Ernie On Wisconsin column by Ernie Franzen quite rightly questions the decision of the Bureau of Commissioners of Public Lands to ban its handful of employees from working on global warming while on the clock. I wonder if there's more to the story, but the ban does seem like overkill.

The column suggests that it is silly for the state to crack down on "time theft" in this way. I agree. these things ought to be handled in less dramatic ways, but let me suggest an even worse example of overreaction to "time theft."

Sending Kelly Rindfleisch to jail for it.

Rindfleisch was charged with felony misconduct in office, i.e., using her public employment in a manner that is inconsistent with her duties to confer a dishonest advantage on another. The theory was, since she wasn't supposed to be doing political work on state time, she had improperly used her position to benefit the candidate she was working for. There is a statute prohibiting fundraising from state office buildings or during set work hours - itself a form of criminalizing "time theft" - but she wasn't charged with violating it. That would only have been a misdemeanor. (In fact, this is what Darlene Wink was ultimately charged with.)

There seems to be a dispute over whether anyone at the Bureau was currently working on climate change during office hours. Perhaps some might even argue that climate change is relevant to the Bureau's mission. But let's assume that someone was working on the issue and that this falls outside his or her job responsibilities -the Bureau itself says so.

Couldn't you shoehorn this climate change advocacy into the felony misconduct in office statute? Wouldn't that person be using her office - its space, perhaps its equipment and the wages she is paid (time theft!) in a way that is inconsistent with his or her duties -she is not supposed to be working on climate change - to confer a dishonest advantage on individuals and organizations engaged in advocacy on global warming.?

One might try to distinguish the Rindfleisch case by arguing that fundraising is specifically prohibited by statute while work on climate change is not, but that may actually weaken the case for using the felony misconduct in office statute in this way. In any event, it would not distinguish the caucus scandal prosecutions. There is simply no express statutory prohibition against public employees doing "political work."

There are still lawyerly distinctions that might be drawn between the caucus and Rindfleisch cases and our climate change hypothetical. But cases seem uncomfortably close.

Don't get me wrong. I don't think that Bureau employees working on climate change should be doing the perp walk. I am using them as a further illustration of why aggressive use of vague statutes to punish political activity is problematic.

I don't know that any of this happened. Even if it did, I would be strongly disposed against using broadly worded statutes to criminalize "time theft."

I think the Bureau's resolution was misguided, but at least it didn't start a John Doe.

Tuesday, April 21, 2015

This is the story: Millennials don't like suburbs. They want to live in the city. Millennials don't like cars. They prefer transit. We should embrace the future and quit spending so much on roads. We should, instead, spend more on urban mass transit including projects such a streetcars that, on their face, seem indefensible.

But the story may be wrong. Over at Right Wisconsin, I write about some recent work that changes the story. Millennials like the suburbs. In fact, more of them are leaving the city than our moving in. While the relatively small cohort that is college educated may be more likely to reside in the city than previous generations, it is unclear whether this is a long term preference or an artifact of delayed marriages and family formation.

I find this completely unsurprising. Whenever someone suggests that human beings are about to radically change their behavior, there is a substantial probability that the claim is wrong. We Baby Boomers were so unique that, with Joni Mitchell, we believed our enthusiasms were not just the "time of the year" but the "time of man."

Monday, April 20, 2015

Writing in the Journal Sentinel, Barbara Miner says that private schools participating in the choice program can "ignore" Wisconsin laws prohibiting discrimination. She then goes on to bemoan the fact that her tax dollars are being used to indoctrinate children in ways that do not meet her approval.

She makes clear that her concern is about Catholic and more traditional religious schools, singling out schools that might teach that " homosexuality is wrong, sex outside of marriage is a sin and artificial birth control is contrary to the law of God." In a jaw dropping statement, she suggests that, in her youth, the Catholic Church was more concerned about social justice than human sexuality. Ms. Miner is older than I am, but I went to Catholic school long enough ago to have attended the Tridentine Mass. I am pretty sure that there was not some "golden era" where the Church was "cool" about premarital sex, sexual orientation and abortion or contraception. In fact, based on my son's experience in Catholic school, I'd guess that sexual matters are less emphasized today that when Sister Maria Immaculata was in charge

In any event, Miner is wrong about the reach of anti-discrimination laws. While there are certainly laws addressing discrimination that do not apply to private schools, there are specific prohibitions of discrimination that apply to the voucher program. Schools cannot discriminate in the selection of students. As to those voucher students attending private religious schools, state law expressly provides that these schools "may not require [a voucher student] to participate in any religious activity" if his or her parent or guardian requests in writing that they be exempt. Sec. 118.60(7)(c); 119.60(7)(c)
To be sure, religious schools may teach willing students things that Ms. Miner thinks are wrong. But, every day, public schools teach children things that religious traditionalists believe to be wrong. Absolute neutrality is simply impossible and "public policy" in a diverse society ought to focus on respecting different points of view rather than enforcing orthodoxy.

Miner is wrong about one more thing. She says that test scores for students participating in the voucher program are "no better" than for children attending public schools. When properly evaluated, this is not true. But even on the flawed measure that Miner is using (comparing an annual snapshot of average WKCE stores among schools), a recent report by the Wisconsin Institute for Law & Liberty found that the test scores for voucher students in Catholic and Lutheran schools (many of which are run by the conservative Wisconsin and Missouri synods) are higher than those for comparable student populations in Milwaukee. In other words, the very religious schools that Miner objects to seem to do a very good job of educating poor children.

Sunday, April 12, 2015

In the Milwaukee Journal Sentinel, Todd Robert Murphy writes that America is divided. He believes that we must act "anew" although he does not explain what that means. In this space, I recently wrote about tolerating speech with which we disagree. I do not suggest that we all need to agree, but it would help if we didn't automatically assume that the other guy is a bastard.

Murphy refers to the reaction to police shootings in which the victim is black and the officer is not. I have been astonished at the extent to which the facts don't matter in the aftermath of these events. Otherwise intelligent people claim that there is some kind of "open season" on black males when the statistics simply don't support that. In fact, they suggest the opposite. People who ought to know better hang on to narratives - "hands up, don't shoot" - long after they have been discredited.

This is an odd thing. There are reasons to be concerned about the police that have nothing to do with race. Giving people guns and exposing them to people at their worst can lead to bad things. (This is why police cameras are probably a good idea.) But it should not be hard for any of us to understand that each of these cases is different and that guilt and innocence depends on the facts and not which narrative - racist cop or young thug - feels right to us. Perhaps this is one way that we might "act anew."

We often hear calls for a dialogue about race - generally from people who want anything but that. A dialogue is not a lecture. It is not limited to confession and the prescription of penance. a conversation about race would certainly be uncomfortable, but that discomfort would be shared all round.

Roger Clegg wanted to have a dialogue about race. Roger is General Counsel of the Center for Equal Opportunity. He is fiercely intelligent but gentle-mannered; one of the nicer people I know. CEO had done a study that demonstrated just how strongly the University of Wisconsin prefers African-American applicants over similarly situated whites, Asians and even Hispanics. (The preference still doesn't result in a large black enrollment at Madison.) When he came to Madison to discuss the report, he was accosted by screaming hordes whose idea of a dialogue is shouting over what you don't want to hear.

Maybe being willing to listen to what we don't want to hear - even when, in the end, we think it is wrong - is another way that we might "act anew."

A large part of our intelligentsia has come to believe that traditional Christian, Jewish and Islamic views on human sexuality are not only wrong, but manifestations of hate. Those who hold them are bigots or psychologically maladjusted ("phobic") and must not be permitted to act on - or even to express - their views without legal sanction (for the former) and social ostracism (for the latter). They believe, like the Medieval Church, that error has no rights.

On the merits, I am closer to the new received wisdom than I am to the religious traditionalists. But it strikes me as arrogant to dismiss the latter as bigots and inconsistent with the very idea of a free society to deny them a space to live in accordance with their consciences. (Analogies to race are, I think, inappropriate but that's a subject for another day.)

Perhaps finding more room to tolerate not what only those people we believe have been historically ostracized, but those we believe to be wrong is another way to "act anew."

Friday, April 10, 2015

At Right Wisconsin, I have a preliminary analysis of Chief Justice Shirley Abrahamson's attempt to block the change to the manner in which the Chief Justice of our Supreme Court is selected. There are multiple claims but I think it helps to see them as falling into two categories.

First, she argues about what the amendment means. She claims that it does not apply until her current term expires. To make it apply now, she says, would be a "retroactive" application. There is a presumption against retroactive application of new laws (that's true) and the amendment, she argues, does not clearly say that it applies immediately. She even goes so far to suggest that voters "were not told" and "did not understand" that it might displace her as Chief Justice before the expiration of her current term.

This argument is beset with problems. First, the amendment does not operate "retroactively." It goes into effect on the day that the election results are certified and changes designation of the Chief Justice from that day forward, i.e., it operates prospectively. Normally, we thing of a retroactive law as one that imposes new consequences for past behavior or that disturbs vested rights or relationships. (More on that later.) It does not mean that one has the right to believe that the law will not change for some given period of time.
In fact, if application of the amendment to the incumbent Chief Justice is "retroactive," it is unclear why it would no longer be so once the incumbent's current term expires. If a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court. In other words, the argument proves too much.

Second, while there is a presumption against retroactive laws, there is no per se prohibition of retroactivity. (Retroactive application can cause other problems but we'll get to that.) It seems clear that the law was intended to change selection of the Chief Justice immediately. There is no "grandparent" provision. The legislature declined to insert one. The selection method is not conditioned upon a vacancy or the completion of a term; it requires a new selection every two years.

It is simply not true that "no one thought" that the amendment could displace the current Chief Justice. In fact, voters were repeatedly told not only that it would do so, but that this was its sole purpose. Proponents of the amendment denied the latter, but not the former.

In any event, I wonder if the federal court will want to reach this question. The ultimate authority on the meaning of the amendment resides with state courts. While federal courts can address state law questions when that is necessary to resolve federal claims, they often, under certain circumstances, defer to state courts to first construe the state law in question. That could happen here in two difference ways. If someone were to file a state court action raising the issue, the federal court might choose to abstain. Alternatively, the federal court might request the Wisconsin Supreme Court to construe the amendment. While this might be awkward for the Supreme Court, it is not impermissible.

There is a third possibility. The federal court might find the federal claim - a constitutional challenge that we have not yet discussed - to be wholly without merit. In fact, it should do so - the claim is close to frivolous. If it dismisses that claim, it should probably dismiss the request to decide whether the law applies during Chief Justice Abrahamson's current term. That is a state law question over which federal courts have no jurisdiction. While there is a concept called supplementary jurisdiction that sometimes permits such claims to be heard, this does not seem like a good case for its application.

So what about that constitutional challenge? The complaint alleges that, if the amendment applies during Chief Justice Abrahamson's current term, it violates the federal constitution. The principal argument is that the Chief Justice has a property interest in being the Chief Justice which is being deprived without due process. But there are some old U.S. Supreme Court cases that say that an elected official, unlike other public employees, has no property interest in his or her office.

If you argue that these cases are outdated or establish only a "default" rule, controlling doctrine makes clear that you must identify a state law source for the claim that the Chief Justice has an entitlement to her position. She can't do that. Nothing in Wisconsin law ever created such an entitlement (a fixed term of office does not do that). Moreover, state law - indeed the state Constitution - was just amended to make clear that there is no such entitlement. A duly enacted constitutional amendment is not a due process violation.

The complaint goes on to argue that the voters who elected her in 2009 were denied due process and equal protection of the law because their election of her "as Chief Justice" has been frustrated. It is, of course, a complete fiction that she was elected "as" Chief Justice. She simply stood for election to the Court. We don't elect the Chief Justice in Wisconsin. That voters knew she was Chief Justice and would remain so unless the law changed is not the same as electing her to that position. It is true that she ran aggrandizing ads referring to herself as "Wisconsin' Chief," but the purpose of those was to elevate her over her opponent, not to ask voters whether she should continue in that role as well as remain on the Court. No voter has ever elected her - as opposed to her colleagues - to be Chief Justice. No voter in 2009 had the option to retain her on the Court but displace her as the Chief.

But even were that not so, the "frustration" of the voters decision in 2009 is a product of a decision in 2015 by … the voters. We would not have thought that the folks who voted for Scott Walker in 2010 would have been denied due process and equal protection if he was recalled in 2012. While recall statutes existed in 2010, so did the process for amending the Constitution.

It is simply not the case that, once voters elect someone, the accoutrements and responsibilities of that office - or even the term of office - cannot be changed until completion of the term. This is particularly true when the change is accomplished by the voters themselves by amending the state's highest law, its Constitution.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.